Friday, May 27, 2016

Last year 633 people, led by Human Rights Watch, submitted claims to the Investigatory Powers Tribunal relating to Prism, Tempora and Upstream; as reported by Edward Snowden. That judgement has now come through, and basically seems to say: whoops illegal stuff was done, but hey, no harm done and anyhow they have out it right now (warning its about 28 pages A4 equivalent:

James EadieQCand Kate Grange (instructed by
Government Legal Department) for the Respondents

Hearing date: 15 April 2016

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Approved Judgment

........................

Mr Justice Burton:

This is the judgment of the Tribunal.

This has been a hearing in respect of the complaints by
ten Claimants, including Human Rights Watch (“the Ten”). It arises out of a worldwide campaign by
Privacy International, which was a party to proceedings before the Tribunal,
which resulted in two Judgments, Liberty/Privacy
Nos 1 and 2 [2015] 1 Cr. App. R 24, [2015] 3 All ER 142, 212. The campaign resulted from those two Judgments,
and from an Open Determination made by the Tribunal dated 22 June 2015 (amended
2 July) (Liberty/Privacy No 3)

Those Judgments dealt with two sets of assumed facts:
first as to the existence of intelligence-sharing with GCHQ of information obtained
in respect of non-US citizens by the US intelligence services, as a result of
two programmes named “Prism” and “Upstream”, and secondly as to the use of warrants
pursuant to s.8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) in
respect of a system called Tempora, whereby communications were allegedly intercepted
and gathered and could be accessed by the UK intelligence services. As to Prism and Upstream, the Tribunal left
open two issues at the end of the first hearing and judgment, and then, after a
further hearing, in Liberty/Privacy
No 2 concluded and declared that, prior to the disclosures by the
Respondents made and referred to in the Tribunal’s Judgments in Liberty/Privacy No 1 and Liberty/Privacy No 2, the Prism
and/or Upstream arrangements contravened Articles 8 and/or 10 of the European
Convention of Human Rights (“ECHR”), but that they now complied. As to Tempora, being the (assumed) system
operated pursuant to s.8(4) warrants, the Tribunal was satisfied, and declared,
that such regime was lawful and compliant with the ECHR.

In Liberty/Privacy
No 3 the Tribunal published its conclusions, after considering all
appropriate information in Closed session, as to:-

“Whether in fact there
has been, prior to 18 November 2014, soliciting, receiving, storing and
transmitting by UK authorities of private communications of the Claimants which
have been obtained by the US authorities pursuant to Prism and/or Upstream in
contravention of Article 8 and/or 10 ECHR as declared to be unlawful by the
Tribunal’s order of 6 February 2015.

Whether in fact the
Claimants’ communications have been intercepted pursuant to s.8(1) or s.8(4) of
RIPA, and intercepted, viewed, stored or transmitted so as to amount to
unlawful conduct and/or in contravention of and, not justified by, Articles 8
and/or 10 ECHR.”

The Tribunal recorded at paragraph 14 that in respect
of one of the claimants, Amnesty International Ltd (“Amnesty”), we had found
that its email communications were lawfully and proportionally intercepted and
accessed pursuant to s.8(4) of RIPA, but that the time limit for retention,
permitted under the internal policies of GCHQ, the intercepting agency, was
overlooked in respect of the product of that interception, such that it was
retained for materially longer than permitted under those policies. The Tribunal recorded:-

“We are satisfied
however that the product was not accessed after the expiry of the relevant
retention time limit, and the breach can thus be characterised as technical,
though (as recognised by the Tribunal in the Belhadj Judgment) requiring a determination to be made. Though technical, the breach constitutes both
“conduct” about which complaint may properly be made under section 65 of RIPA
and a breach of Article 8 ECHR… The Tribunal
is satisfied that Amnesty… has not suffered material detriment, damage or
prejudice as a result of the breach, and that the foregoing Open Determination
constitutes just satisfaction, so there will be no award of compensation.”

In respect of another claimant, the Legal Resources
Centre, South Africa, the Tribunal found (paragraph 15 of Liberty/Privacy No 3) that communications from an email address
associated with it were intercepted and selected for examination pursuant to s.8(4)
RIPA: the Tribunal was satisfied that the interception was lawful and
proportionate and that the selection for examination was proportionate, but
that the procedure laid down by GCHQ’s internal policies for selection of the
communications for examination was, in error, not followed in that case. Hence, as in the case of Amnesty, that
amounted to “conduct” about which
complaint was properly made under s.65 RIPA, and a breach of Article 8 ECHR,
but the Tribunal was again satisfied that no use whatever was made by the
intercepting agency of any intercepted material, nor any record retained, that
no detriment or damage was suffered and that no compensation was required.

The origin of the applications now before us is what
has been called the Privacy International Campaign, and in particular an entry
on Privacy International’s website, to the following effect:-

“Did GCHQ Illegally Spy
on You?

Have you ever made a
phone call, sent an email, or, you know, used the internet? Of course you have!

Chances are, at some
point, your communications were swept up by the U.S National Security Agency’s
mass surveillance program and passed on to Britain’s intelligence agency GCHQ.

Because of our recent
victory against GCHQ in court, now anyone in the world – yes, ANYONE, including
you – can try to find out if GCHQ illegally had access to information about you
from the NSA.

Make your claim using
one of the options below, and send it to the Investigatory Powers Tribunal
(IPT) to try and find out if GCHQ illegally spied on you.

Privacy International is
not representing you in your claim before the IPT. You are responsible for filing your claim and
following up with any requests for additional information or action that you
may receive from the IPT.

To start your claim,
please click on the link below that applies to you.”

A standard application form was made available by
Privacy International. The Ten Claimants
made use of this to present their claims, attaching it to Tribunal Forms T1 and
T2, the former relating to human rights claims and the latter to non human
rights claims. These, apart from giving
the names, addresses and, where relevant, dates of birth, of the Claimants, and
identifying the proposed Respondents, simply cross-referred to the standard
form to which we have referred.

There have been 663 such applications, following that
same course. The Tribunal has listed for
hearing the first ten applications received, in order to enable issues to be
addressed as to whether the claims should be investigated. Of the Ten, six are represented by counsel,
Ben Jaffey, and solicitors, Messers Bhatt Murphy, pro bono, (“the Six”), and we
have been very grateful for their contribution to the debate which has taken
place before us between them, on behalf of the Six, but also clearly
inferentially on behalf not only of the remainder of the Ten, but of all 663 Claimants,
and the Respondents, represented by James Eadie QC and Kate Grange, as to
whether, and if so on what basis, any of the Six, the Ten or the 663
applications should be considered and investigated by the Tribunal.

The standard form Statement of Grounds supplied by
Privacy International and used by each of the 663 Claimants reads as follows:-

“[…] is a
resident of […]

I believe
that the Respondents have and/or continue to intercept, solicit, access,
obtain, process, use, store and/or retain my information and/or
communications. I also believe that that
my information and/or communications are accessible to the Respondents as part
of datasets maintained, in part, or wholly, by other governments’ intelligence
agencies.

In so doing,
the UK Government has breached Article 8 and 10 of the European Convention on
Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998
(HRA).

This Tribunal
has already concluded that, to the extent my information was shared with the UK
Government Communications Headquarters (GCHQ) by the US National Security
Agency (NSA) prior to 5 December 2014, such action was unlawful and a violation
of Article 8 of the ECHR [Liberty/Privacy No 2].

If my information was so shared, I request a
determination pursuant to Section 68(4) of the Regulation of Investigatory
Powers Act 2000 (RIPA) that such unlawful sharing occurred, with a summary of
that determination including any findings of fact: Belhadj & Ors [2015] UKIPTrib 13_132-H.

I also
believe that the Respondents may have unlawfully intercepted, solicited,
accessed, obtained, processed, used, stored and/or retained my information
and/or communications, whatever the source of that information or
communications may be. It appears that
the Respondents have, in many cases, failed to follow their own internal
procedures.

To the extent
the Respondents failed to follow their internal policies or procedures
governing the interception, access, obtaining, processing, storage or retention
of my information and/or communications, such failure is unlawful and violates
Articles 8 and 10 of the ECHR [the Open
Determination].

These grounds accompany the forms T1 and T2
filed by me. They set out, in summary,
the Grounds relied upon.

I seek the
following relief:

A declaration
that the UK’s intercepting, soliciting, accessing, obtaining, processing,
using, storing and/or retaining my information and/or communications is
unlawful and contrary to Article 8 and 10 of the ECHR, and RIPA;

An order
requiring destruction of any unlawfully obtained material;

An injunction
restraining further unlawful conduct; and

Any further
relief the Tribunal deems appropriate.”

Only two out of the 663 Claimants have given
supplementary information within the standard form Statement of Grounds, both
of whom are part of the Six, now represented by Mr Jaffey at this hearing. One is Human Rights Watch Inc, which
supplemented paragraph 1 of the standard form Statement of Grounds to explain
that it is a charitable organisation registered in New
York state, but with a major office in the United Kingdom, and explaining that
it undertakes research and advocacy to further observance of fundamental human
rights globally. The other, referred to
only by the initial R, explained, by expansion of her paragraph 2, that she is
a non-UK human rights lawyer based in London, who has been substantially
involved in human rights matters, including sensitive legal matters. As to the other four of the Six, they did not
so supplement the standard form Statement of Grounds, but for the purposes of
this hearing they have now given further information about themselves. G is an independent privacy and security
researcher, materially involved in intelligence matters, living in a Council of
Europe state. B is a journalist,
resident in the United
Kingdom and materially involved in
intelligence and security matters. Mr
Weatherhead, resident in the UK,
is a technology officer for Privacy International, again substantially involved
in the intelligence field, and Mr Wieder, resident in the United States, is an IT
professional and independent researcher, again substantially involved in
intelligence and security matters.

Of the four who form the remainder of the Ten listed
for this hearing, none are represented and none are therefore identified, save
that it can be recorded that three are resident in the United States and one in the United Kingdom. None of them have given any additional information
to supplement the standard form Statement of Grounds. Of the total 663 (including the Ten), 294 are
resident in the United Kingdom, 191 are resident in other countries party to
the ECHR (94 from Germany, 12 from Italy and Sweden and 11 from France), 145
are from the United States and 33 are from other countries (including 12 from
Canada and 10 from Australia). Seventeen
have added some additional material into their T1 or T2 forms, but none of that
material appears to be relevant to whether they are or may be the subject of
interception, or information-sharing, and most is of no materiality at
all. In any event the decision in this
judgment is being given by reference to the applications by the Ten, being the
first ten applications lodged pursuant to the Privacy International Campaign,
listed for the purpose of our consideration, with the assistance of
counsel. They are not strictly test
cases or even sample cases, but cases on the basis of which it was convenient
to have inter partes legal argument as to whether any of the 663 applications should
be considered, and if so what, if any, would be the test for the Tribunal to
apply as to whether they should be considered or not.

There are effectively two issues before the
Tribunal. The first has been loosely
called the “victim” issue, or perhaps
more traditionally the question as to the locus of the Ten and, because all of
them rely on the same Statement of Grounds, of the other 653. The second relates to the question of
jurisdiction, namely, assuming any of them have locus, whether any of the Claimants
other than those resident or based in the UK are entitled to pursue these
claims.

The victim issue

The question of locus has been dealt with by the
Tribunal, encouraged by the jurisprudence of the European Court of Human Rights
(“ECtHR”) on a very open-minded basis, and without requiring from its claimants
the kind of arguable case which they need in order to present a case in High
Court: see Liberty/Privacy No 1 at
para 4 (ii), referring to Kennedy v UK
[2011] 52 EHRR 4, Weber & Saravia v
Germany [2008] 46 EHRR SE5 and Liberty
v UK [2009] 48 EHRR 1.

The question has been addressed and explained recently
by the ECtHR in Zakharov v Russia
4/12/2015 Application no 47143/06, in which (as is clear from paragraph 152 of
the Judgment of the Court), the Russian government submitted that “the applicant could not claim to be a
victim of the alleged violation of Article 8… and that there had been no
interference with his rights (because)
he had not complained that his communications had been intercepted.” At paragraph 163 the Court recorded that “the applicant in the present case claims
that there has been an interference with his rights as a result of the mere
existence of legislation permitting covert interception of mobile telephone
communications and a risk of being subjected to interception measures, rather
than as a result of any specific interception measures applied to him.” The Court stated in paragraph 164 that “the Court has consistently held in its
case-law that the Convention does not provide for the institution of an actio popularis
and that its task is not normally to review the relevant law and practice in
abstracto, but to determine whether the manner in which they were applied to,
or effected, the applicant gave rise to a violation of the Convention….
Accordingly, in order to be able to lodge an application in accordance with
Article 34, an individual must be able to show that he or she was “directly affected”
by the measure complained of. This is
indispensible for putting the protection mechanism of the Convention into
motion although this criterion is not to be applied in a rigid, mechanical and
inflexible way throughout the proceedings.”

Thus at paragraph 165 the Court set out that it “has permitted general challenges to the
relevantlegislative
regime in the sphere of secret surveillance in recognition of the particular
features of secret surveillance measures and the importance of ensuring
effective control and supervision of them. In the case ofKlass and Others v
Germany [1979-80] 2 EHRR 214 the Court held that an individual might,
under certain conditions, claim to be the victim of a violation occasioned by
the mere existence of secret measures or of legislation permitting secret
measures, without having to allege that such measures had been in fact applied
to him. The relevant conditions were to be determined in each case according to
the Convention right or rights alleged to have been infringed, the secret
character of the measures objected to, and the connection between the applicant
and those measures.”

However the Court continued:-

“166 Following the Klass and Otherscase, the case-law of the
Convention organs developed two parallel approaches to victim status in secret
surveillance cases.

167 In several cases the Commission and the Court
held that the test in Klass and Otherscould not be interpreted so broadly as to
encompass every person in the respondent State who feared that the security
services might have compiled information about him or her. An applicant could
not, however, be reasonably expected to prove that information concerning his
or her private life had been compiled and retained. It was sufficient, in the
area of secret measures, that the existence of practices permitting secret
surveillance be established and that there was a reasonable likelihood that the
security services had compiled and retained information concerning his or her
private life...In all of the above cases the applicants alleged actual interception of
their communications. In some of them they also made general complaints about
legislation and practice permitting secret surveillance measures…

168 In other cases the Court reiterated the Klass and Othersapproach that the mere
existence of laws and practices which permitted and established a system for
effecting secret surveillance of communications entailed a threat of
surveillance for all those to whom the legislation might be applied. This
threat necessarily affected freedom of communication between users of the
telecommunications services and thereby amounted in itself to an interference
with the exercise of the applicants’ rights under Article 8, irrespective of
any measures actually taken against them… In all of the above cases the
applicants made general complaints about legislation and practice permitting
secret surveillance measures. In some of them they also alleged actual
interception of their communications…

169 Finally, in its most
recent case on the subject, Kennedy v. UK, the Court held that
sight should not be lost of the special reasons justifying the Court’s
departure, in cases concerning secret measures, from its general approach which
denies individuals the right to challenge a law in
abstracto. The principal reason was to ensure that
the secrecy of such measures did not result in the measures being effectively
unchallengeable and outside the supervision of the national judicial
authorities and the Court. In order to assess, in a particular case, whether an
individual can claim an interference as a result of the mere existence of legislation
permitting secret surveillance measures, the Court must have regard to the
availability of any remedies at the national level and the risk of secret
surveillance measures being applied to him or her. Where there is no
possibility of challenging the alleged application of secret surveillance
measures at domestic level, widespread suspicion and concern among the general
public that secret surveillance powers are being abused cannot be said to be
unjustified. In such cases, even where the actual risk of surveillance is low,
there is a greater need for scrutiny by this Court (see Kennedy v UK…at para 124).”

It was in Kennedy
that the ECtHR approved the role of this Tribunal.

What the ECtHR described as its “harmonisation of the approach to be taken” then appears in the
following paragraph:

“170. The Court considers, against this background, that it is
necessary to clarify the conditions under which an applicant can claim to be
the victim of a violation of Article 8 without having to prove that secret surveillance
measures had in fact been applied to him, so that a uniform and foreseeable
approach may be adopted.

171.
In the Court’s view the Kennedy approach is best
tailored to the need to ensure that the secrecy of surveillance measures does
not result in the measures being effectively unchallengeable and outside the
supervision of the national judicial authorities and of the Court. Accordingly,
the Court accepts that an applicant can claim to be the victim of a violation
occasioned by the mere existence of secret surveillance measures, or
legislation permitting secret surveillance measures, if the following
conditions are satisfied. Firstly, the Court will take into account the scope
of the legislation permitting secret surveillance measures by examining whether
the applicant can possibly be affected by it, either because he or she belongs
to a group of persons targeted by the contested legislation or because the
legislation directly affects all users of communication services by instituting
a system where any person can have his or her communications intercepted.
Secondly, the Court will take into account the availability of remedies at the
national level and will adjust the degree of scrutiny depending on the
effectiveness of such remedies. As the Court underlined in Kennedy, where the domestic system does not afford an effective remedy to the
person who suspects that he or she was subjected to secret surveillance,
widespread suspicion and concern among the general public that secret
surveillance powers are being abused cannot be said to be unjustified (see Kennedy… para 124). In such
circumstances the menace of surveillance can be claimed in itself to restrict
free communication through the postal and telecommunication services, thereby
constituting for all users or potential users a direct interference with the
right guaranteed by Article 8. There is therefore a greater need for scrutiny
by the Court and an exception to the rule, which denies individuals the right
to challenge a law inabstracto,
is justified.
In such cases the individual does not need to demonstrate the existence of any
risk that secret surveillance measures were applied to him. By contrast, if the
national system provides for effective remedies, a widespread suspicion of
abuse is more difficult to justify. In such cases, the individual may claim to
be a victim of a violation occasioned by the mere existence of secret measures
or of legislation permitting secret measures only if he is able to show that,
due to his personal situation, he is potentially at risk of being subjected to
such measures.

172.
The Kennedy approach therefore provides the Court with
the requisite degree of flexibility to deal with a variety of situations which
might arise in the context of secret surveillance, taking into account the
particularities of the legal systems in the member States, namely the available
remedies, as well as the different personal situations of applicants.”

In paragraph 288 the Court makes a further reference to Kennedy v UK
and its compatibility with the Convention because “in the United
Kingdom any person who suspected that its
communications were being or had been intercepted could apply to the
Investigatory Powers Tribunal.”

The Tribunal considers that the appropriate approach in
the United Kingdom is accordingly that “the
individual may claim to be a victim of a violation occasioned by the mere
existence of secret measures or of legislation permitting secret measures only
if he is able to show that, due to his personal situation, he is potentially at
risk of being subjected to such measures.”

The Tribunal’s jurisdiction pursuant to s.65(2) of RIPA,
for purposes material to our consideration, is by s.65(4) that:-

“The Tribunal is the
appropriate forum for any complaint if it is a complaint by a person who is
aggrieved by any conduct…which he believes –

to have taken place
in relation to him, to any of his property, to any communications sent by or to
him, or intended for him, or to his use of any postal service,
telecommunication service or telecommunications system; and

… to have been
carried out by or on behalf of any of the intelligence services.”

As to the exercise of that jurisdiction, s.67 provides
by subsection (1) that, subject to subsections (4) and (5), “it shall be the duty of the Tribunal… to
consider and determine any complaint or reference made to them by virtue of
section 65(2)(b)”, and by, subsection (3), “where the Tribunal considers a complaint made to them by virtue of s.65
(2)(b), it shall be the duty of the Tribunal to investigate” whether the
persons against whom any allegations are made in the complaint have engaged in
relation to the complainant or his property or communications etc in any
conduct falling within s.65(5).

As to the two exceptions referred to in s.67(1), the
first is:-

“(4) The Tribunal shall
not be under any duty to hear, consider or determine any proceedings, complaint
or reference if it appears to them that the bringing of the proceedings, or the
making of the complaint or references are frivolous or vexatious.”

The second, s.69(5), relates to a
one year time bar, with a discretion to extend.

The Tribunal must thus exercise its jurisdiction,
pursuant to the guidance of the ECtHR, in relation to the admissibility of the
applications now before us, both by the Ten and, in due course, in the light of
our conclusions, in respect of the remainder of the 663.

It is important to pay regard to the fact that all
these complaints, in accordance with the standard form provided by Privacy
International, and all by reference to the Tribunal’s judgment in Privacy/Liberty, direct a case as to
both Prism/ Upstream, i.e. the alleged information-sharing of intelligence
obtained by the US authorities under Prism and Upstream by reference to non-US
citizens outside the US, and the s.8(4) RIPA regime of alleged interception by
UK Intelligence Services.

Addressing Prism/Upstream first, they were explained in
paragraphs 47 and 48 of Liberty/Privacy
No 1. A request may be made by the
Intelligence Services to the US authorities for (unanalysed) intercepted
communications, and associated communications data obtained by them under
Prism/Upstream, only (subject to exceptional circumstances which have never
occurred) if there is in existence a relevant RIPA interception warrant permitting
specific targeting of their communications of identified non-US parties. Accordingly the Respondents submitted,
particularly in the light of Zakharov,
as follows, in their skeleton argument of 12 April 2016 (“the Respondents’ Skeleton”):-

“9. Consequently the Applicants would have to be
in a position to satisfy the Tribunal that they belong to a group of persons
who may be said to be possibly affected by the Intelligence Sharing
Regime. In particular:

The Prism and Upstream programmes permit the
interception and acquisition of communications to, from or about specific
tasked selectors associated with non-US persons who are reasonably believed to
be outside the US.
i.e. they concern unanalysed intercepted communications (and associated
communications data) relating to particular individuals outside the US,
not broad data mining.

As stated in the Disclosure which was
provided in the Liberty/Privacy proceedings, the Intelligence Services have
only ever made a request for such unanalysed intercepted communications (and
associated communications data) where a RIPA warrant is already in place for
that material, but the material cannot be collected under the warrant. Any request made in the absence if a warrant
would be exceptional, and would be decided upon by the Secretary of State
personally: see the Interception Code at para 12.3.

10. As the Tribunal will be well aware, the
conditions for intercepting communications pursuant to a RIPA warrant are as
set out in s.5(3) RIPA. They are the
interests of national security; the prevention or detection of serious crime;
or the safeguarding of the UK’s
economic well-being, in circumstances appearing relevant to the interests of
national security. Those conditions
substantially mirror, and are no narrower than, the statutory functions of the
Intelligence Services under the SSA and ISA.
If the victim hurdle is to be satisfied, the Claimants will need to
advance a credible case that their data could be collected and shared under any
of the conditions in s.5(3) RIPA, the SSA or ISA. Certainly the assertion that individuals have
been involved in campaigning activities concerning e.g. freedom of expression
would be inadequate to meet that test.
Such activities would not give any grounds for the issue of a warrant
for interception of the Applicants’ communications under s.5(3) RIPA. Nor, by the same token, would they give
grounds for intelligence sharing without a warrant in pursuance of the
Intelligence Services’ statutory functions.

11. In those circumstances the Tribunal’s
determinations and declarations in the Liberty/Privacy
proceedings provide the appropriate remedy in relation to the Intelligence
Sharing Regime and unless the Claimants are able to establish that they have
victim status none of them are entitled to individual case-specific
examination.”

Mr Jaffey accepted that, subject to any challenge
hereafter, although there was a potential distinction resulting from this
Tribunal’s conclusion in Liberty/Privacy,
the s.8(4) RIPA regime had been lawful throughout but that any information-sharing
in respect of Prism/Upstream would have been unlawful prior to 5 December 2014,
nevertheless it could be inferred, by virtue of the making of no determination
in the Liberty/Privacy case, that
there had been no such information-sharing prior to that date in respect of any
of the claimants in that case. He also
accepted that there was a distinction between any case now sought to be made by
an individual claimant with regards to Prism/Upstream and one relating to the s.8(4)
RIPA regime, by virtue of the necessarily targeted nature of the former, as
explained above. Nevertheless he
submitted that if there were non-US persons who might be of interest to GCHQ,
Prism/Upstream might be a source of obtaining information about them.

It is quite clear to us in the circumstances that a
case of belief by a claimant that he may be subject to information-sharing pursuant
to Prism/Upstream is far more difficult to establish than a claimant’s belief
as to interception pursuant to the s.8(4) RIPA regime, which, as explained in Liberty/Privacy, relates to the interception
of communications as a result of an untargeted warrant pursuant to s.8(4)
RIPA. Nevertheless as far as the s.8(4)
RIPA regime also is concerned, issue is joined between the parties as to
whether what is contained in the standard form is sufficient.

The primary stance taken by the Respondents (paragraph
13 of their Preliminary Submissions dated 9 December 2015 (“the Respondents’
Submissions”)) is that the applications raise no new issues of law, the issues
they raise having been comprehensively and conclusively addressed in the Liberty/Privacy proceedings, and that
there is no proper basis upon which detailed individual investigations need to
be carried out in response to the Privacy International campaign. The case is expanded as follows in those
Submissions:-

“15. It is clear from
the standard template Statement of Grounds which is being used by all of the
new complainants that the legal issues are identical to those which were
considered in Liberty/Privacy,
namely the legality of the intelligence sharing regime and the legality of the
interception regime. Indeed, as
expressly noted at §4 of the Grounds, the Tribunal has already given a
declaration on the historic lawfulness of the intelligence sharing regime in [Liberty/Privacy No 2].
Consequently there are no new legal issues which these standard-form
complaints seek to have determined.

16. For the avoidance
of doubt, it is the Respondents’ position that the Grounds are to be read as
confined to the legal issues as determined in Liberty/Privacy. Although paragraph 6 of the standard template (and
possibly the first sentence of paragraph 2) suggest that the Tribunal is being
invited to consider every potential source of information about the Claimants,
from whatever source, including whether there has been compliance with
“internal procedures” in some unspecified way, those parts of the Grounds are
so broad-ranging and ill-defined that they cannot properly serve to widen the
complaints beyond the scope of the legal issues which were considered in Liberty/Privacy.

…….

20. It is submitted
that three matters are central to the proportionate remedial response to the
Privacy campaign:

a.
The Tribunal has already scrutinised the legality of the regime in detail in
the Liberty/Privacy
proceedings. It has made findings about
the lawfulness of the regimes and, in respect of the intelligence sharing
regime, the past forseeability deficiency.
That deficiency was corrected by the further disclosures which were put
into the public domain during those proceedings.

b.
In… [Liberty/Privacy No 3] the Tribunal examined what had occurred in
respect of each of the individual Claimants and it made determinations in
favour of the Third and Sixth Claimants.
However the breaches which had occurred were technical in the sense
that, in relation to the Third Claimant, the information was not accessed after
the expiry of the relevant retention time limit (§14) and, in relation to the
Sixth Claimant, no use whatever was made of any intercepted material, nor any
record retained (despite the procedure for selection having been in error in
that case) and therefore no material detriment, damage or prejudice occurred. Importantly, the Tribunal indicated in [Liberty/Privacy No 3] that steps should be taken to ensure that
neither of the breaches of procedure occurs again and the Tribunal indicated it
would be making a CLOSED report to the Prime Minister pursuant to s.68(5) of
RIPA. Thus the Tribunal has itself taken
steps to ensure that such breaches do not occur again.

c.
The Tribunal has also approved and emphasised the importance of the oversight
arrangements which are in place and which are there to ensure compliance with,
inter alia, the Agencies internal policies/procedures. In Liberty/Privacy
the Tribunal highlighted the importance of both the ISC and the Commissioner in
this regard [see §§91-92 and 121 of [Liberty/Privacy
No1]. The Commissioner in particular
with his “fully implemented powers of oversight and supervision” (§92) has
demonstrated the “scope and depth of his oversight duties and activities” (§92)
and is there to keep under review the compliance by the Agencies with the legal
framework, including their internal policies and procedures. The Commissioner will of course be aware of
the judgments in Liberty/Privacy and
can therefore be expected to focus on making sure that the technical breaches
which occurred in individual instances in that case are not repeated.

21. Consequently there has already been detailed
scrutiny of the relevant regimes by this Tribunal and compliance with the
adequate internal arrangements is a matter which the Commissioner is well
placed to scrutinise and oversee. There
would be no material remedial deficit were the Tribunal in the copycat cases
simply to rely upon its earlier judgments rather than requiring individual case
examination by the Agencies. The
Tribunal can properly conclude that such a course of action is disproportionate
and unnecessary given the extent of work which would be required to conduct
such an examination.”

In paragraph 5 of their Skeleton the Respondents assert
that “there is no justification for going
further than [the declarations made in Liberty/Privacy] in other individual cases. The composition of organisations considered
in the Liberty/Privacy proceedings
provided a demonstratively appropriate sample of cases against which to test
the lawfulness of the operation of the intelligence sharing regime.”

The Claimants emphasise that in the Liberty/Privacy proceedings the
Tribunal went on to investigate the individual complaints by those claimants,
in the light of the findings that intelligence sharing pursuant to
Prism/Upstream had been unlawful prior to 14 December 2015 and that the s.8(4)
RIPA regime had been lawful at all times, and made the findings recorded in
paragraphs 5 and 6 above in relation to two of the claimants. Mr Jaffey in his Submissions on behalf of the
Six (“the Claimant’s Reply”) stated:-

“10. The purpose of the
claims made as part of the Privacy International Campaign is to enable
individuals to ensure that bulk surveillance (whether through intercept or
receipt from a foreign agency) carried out against them is carried out lawfully,
and discover if their private and personal information has been unlawfully
obtained. The claimants have no
entitlement to know about lawful surveillance. But an essential feature of any democratic
society is that covert breaches of the law by the State are disclosed to the
victim.”

He characterised the Respondents’ position in argument
as being “True it is that some of the
claimants in Liberty/Privacy were successful and there were violations found in
those cases, but we have decided in your cases, [that] we are not even going to look.”

The second submission by the Respondents is that the
core purpose of these proceedings is to reveal the extent of the Agencies’
knowledge, and thus evade the key principle of Neither Confirm Nor Deny, which
is enshrined in the answer required by s.68(4) of RIPA namely:-

“Where the Tribunal
determine any proceedings, complaint or reference brought before or made to
them, they shall give notice to the complainant which (subject to any rules
made by virtue of section 69(2)(i)) shall be confined, as the case may be, to
either-

(a) a statement that
they have made a determination in his favour; or

(b) a statement that no
determination has been made in his favour.

They set out this case in paragraphs 31-35 of the
Respondents’ Submissions:-

“31. This campaign is a
very deliberate attempt on the part of individuals to find out whether the
intelligence agencies hold information on them.
In circumstances where the legality of the relevant regimes has already
been addressed, that can be the only purpose of the complaints, as is wholly
borne out by the statements made in the public campaign which has generated
these complaints.

32. The
Respondents have, in the past, expressed considerable concern about the
prospect of the Tribunal’s remedial discretion being used in such a way that
would permit individuals (including current investigative targets) to discover
whether they have been the subject of interception (as noted in the Belhadj IPT proceedings – see judgment
dated 29 April 2015). For example,
interception is one of the most sensitive and important forms of intelligence
gathering and one which cannot work if the subject of the interception is aware
that his communications are being intercepted and examined: see e.g. Weber… at §93 and §135. Revelation of such information could cause
targets of interest to change their behaviour, with the obvious impact this
could have on continued intelligence gathering. In addition it is to be noted
that these complaints seek to discover whether intelligence information may
have been shared with GCHQ by the NSA prior to the Tribunal’s December 2014
judgment. So not only does this affect
the ability of domestic intelligence agencies to keep such information secret,
but it also could potentially compromise the NSA and its intelligence gathering
activities, with a consequent impact on the intelligence relationship between
the UK and the US.

33. Those concerns have
come into ever sharper focus as a result of this large-scale, direct and
deliberate attempt to find out what information is held by the intelligence
agencies.

34. The Tribunal has
recognised that circumstances may arise in which it is appropriate to put
considerations of public safety and security before rights of individuals to
specific determinations on their complaints.
In Belhadj the Tribunal left
open the possibility that exceptional circumstances might arise where, either
by reference to discretionary Administrative Court principles (pursuant to s.
67(2) of RIPA 2000) or otherwise, it may be appropriate to preserve NCND when
approaching the Tribunal’s remedial discretion (see §18 of the judgment dated
29 April 2015). The Tribunal did so
even in relation to individual cases in which a breach of the ECHR had been
found. That discretionary Administrative
Court principles, which this Tribunal is obliged to apply pursuant to section
67(2) of RIPA, can lead to a pragmatic approach, is well recognised in the case
law – see for example R (Tu) v Secretary
of State for the Home Department [2003] Imm AR 288 at §24. In addition it
is well established that strong public policy reasons can lead to denial of a
remedy, even where unlawfulness has been shown – see, for example, R v Attorney General ex parte Imperial
Chemical Industries [1987] 1 CMLR 72 at §112, R v General Medical Council ex parte Toth [2000] 1 WLR 2209 at §6
and R (C) v Secretary of State for
Justice [2009] QB 657 at §41.

35. It is accordingly
and unsurprisingly proper and appropriate for public security considerations to
impact on the exercise of the Tribunal’s remedial discretion. Such considerations are squarely and
obviously in play in circumstances in which there is an orchestrated campaign
the central purpose of which appears to be to enable individuals to discover
whether information about them might be held by the Agencies.”

Mr Jaffey takes exception to, and joins issues with
this, not least as set out in paragraph 30 above, and in paragraphs 31-34 of
his Reply:-

“31. The Respondents
suggest that the generic foreseeability declaration is appropriate even if
the Tribunal finds that a particular claimant has been a victim of unlawful
conduct. They argue that, where the Tribunal concludes that a public body
had acted unlawfully, it would be able to withhold not only the details or
reasons for its decision, but the very fact a positive determination had been
made. This cannot be correct.

32. First, the Tribunal
has already determined this exact issue in Belhadj.
It rightly held that claimants had to be told when a decision was made in their
favour and endorsed (§ 19) the fact that such notification is:

a. Mandatory under s. 68(4) of RIPA 2000;

b.
Necessary for the purposes of compensation under the regime;

c.
Required for compatibility with Articles 6 and 8 of the Convention. In Kennedy v UK at § 189, the ECtHR held
that a successful claimant is entitled to information on the findings of fact
made in his or her case;

d.
Required for public confidence in the Tribunal. In the Tribunal’s words [in
Belhadj] it has been:

‘entrusted
with the task of investigating complaints, to a large extent in closed
proceeding… It would, in the Tribunal’s judgment, undermine public confidence
that Parliament had created a means of holding the relevant public agencies to
account, if the Tribunal’s findings of unlawful conduct by the Intelligence
Agencies could be concealed…” (§ 19).

33. The Respondents
nonetheless argue that the Tribunal should exercise its discretion to avoid
giving a successful claimant notification of his or her decision. They rely on one
obiter passage in the Belhadj
judgment (“There may perhaps be exceptional circumstances (not relevant in the
present case) in which particular facts may drive the Tribunal to a different
conclusion, whether by reference to discretionary Administrative Court principles pursuant
to s.67(2) or otherwise…” (§ 18)).

34. The Tribunal made
it clear that this “cannot possibly be the ordinary case” (§ 18) and that the
circumstances of the Belhadj case
did not amount to the hypothetical ‘exceptional circumstances’. Further:

a.
The Tribunal in Belhadj (§ 18)
explicitly rejected any distinction between ‘substantial breaches’ and other
breaches for notification purposes:

i. there is no such requirement in the
statutory regime;

ii.
the RIPA regime only provides the Tribunal with a binary choice between a
determination in favour of the Claimant or not;

iii.
Hansard indicates that the Minister explicitly rejected this distinction when
the legislation was passed and plainly stated that “We have no intention of
limiting the determination when a tribunal makes a finding, however technical,
in a complainant’s favour”.

b.
The alleged breaches in the present dispute may in fact be substantial, and not
‘technical’ as the Respondents submit, which would only strengthen the justification
for consideration of the individual circumstances of each case.”

The Respondents further submit that this is effectively
a ‘fishing expedition’, and that the appropriate response is simply to
determine the current complaints by express reference back to the
determinations made in the Liberty/Privacy
proceedings, or by way of a fresh declaration in similar terms in favour of
each claimant. The Respondents submit
that, unlike in Belhadj, where there
was a concession that the substance of their policies/procedures for protecting
legal and professional privilege material was in breach of Article 8, in Liberty/Privacy the only failure, and
then only in respect of Prism/Upstream, related to the lack of
foreseeability/accessibility arising out of the fact that disclosures about the
procedures were not made until the onset of the Liberty/Privacy proceedings.
In this case the Respondents submit (paragraph 41 of their Submissions)
that, unlike in Belhadj, “there is no good reason why the Claimants
should not receive the same foreseeability declaration given to all claimants
in Liberty/Privacy, given that there
was no lack of substantive safeguards in the regime and the breach effects the
public at large and is not dependent on what may or may not have occurred on
the facts of individual cases.”

The Claimants respond that the Respondents ignore the
Tribunal’s findings of breaches in relation to the handling of information in Liberty/Privacy No 3, as set out in
paragraphs 5 and 6 above, but in any event they rely (in paragraph 29 of the
Claimants’ Reply) upon their assertion of an entitlement pursuant to Article 6
of the ECHR to have their civil rights determined, relying inter alia upon a
decision by this Tribunal IPT 01/62 (at paragraph 85-108) as to the applicability
of Article 6.

The Respondents vigorously put in issue the
applicability of Article 6, in paragraphs 22-27 of their Skeleton, pointing out
further in oral argument that the cases upon which the Claimants primarily rely,
being Klass v Germany (Report of the
Commission) 9 March 1977 and AEIHR &
Ekimdzhiev v Bulgaria (Application 62540/00 28 June 2007), were addressed
in Kennedy v UK at 177 to 179, and
the issue of the applicability of Article 6 was expressly left open by the
ECtHR. We are not in the event invited
to resolve this knotty question, but on any basis, quite apart from Article 6,
the Claimants rely upon our obligation to consider the cases pursuant to s.67
of RIPA as set out in paragraph 21 above.

Finally the Respondents submit that we can consider and
determine the cases without investigation pursuant to our power under Rule 9 of
the Investigatory Powers Tribunal 2000 and s.68(1) of RIPA to determine our own
procedure. Mr Jaffey submits that we have
no power to take that course, but only if pursuant to s.67(4) we conclude that
a claim is frivolous and/or vexatious; though he concedes that we could follow
the latter course if we did conclude that the 663 claims or any of them are
unsustainable, and therefore frivolous.
However, seemingly recognising the burden upon the Tribunal, and even
more so upon the Agencies, if investigation of them be directed, Mr Jaffey in
his Reply suggested in paragraph 7 what he called a solution, namely to adopt a
“streamlined approach”, which he there
described, of identifying issues and types of breaches that may have occurred,
by reference to the bringing of equal pay and other claims in other tribunals. However, as he recognised himself in
argument, that would in no way resolve the need for individual consideration by
the Agencies as to each Claimant, to see whether there has been intelligence-sharing
or interception of any of his or her communications, and if so in each case to
trace through what occurred in relation to any information so obtained.

We are satisfied that there is no shortcut available
which would prevent the full consideration of each individual claim, if we so
direct it. The Respondents in their
Skeleton pointed to what they called the “important
recognition” by Mr Jaffey in his paragraph 7, referred to above, of the
need for a “proportionate and pragmatic
solution” for addressing the “current
influx of claims”. They state as
follows:-

“13.… What is suggested
is that a group of lead claims should go first to identify the type of breaches
which might have occurred, followed by a “streamlined approach to dealing with
the remainder”. But that is precisely
what has already occurred. The Tribunal
in the Liberty/Privacy proceedings
has already considered the circumstances of 10 human rights/privacy campaigning
organisations. It has pronounced on the
legality of the Regimes and made case-specific findings in all cases, including
in two cases where technical breaches had occurred. That enabled the IPT to highlight areas of
concern in respect of which steps were necessary to ensure that such breaches
never occur again. The Prime Minister
and the Commissioner were accordingly made aware of the situation.

14. It is also to be
noted that this part of the Claimants’ case must necessarily proceed on the
basis that persons making a complaint to the IPT are not simply entitled
without more to have their individual circumstances examined and
determined. The question on that basis is
thus where, not whether, to draw and proportionate and pragmatic line before
declining to consider individual cases.”

The Respondents continue:-

“17… the Claimants’ submissions fail to recognise the importance of the fact that these claims have been brought as part
of a deliberate campaign with the principle purpose of discovering whether GCHQ
held information about individuals/organisations. Such a campaign very obviously has resource
implications both for the Agencies and for the IPT itself. In that regard, whilst the claims may or may
not qualify for dismissal solely on the grounds that they are frivolous or
vexatious (see s.67(4) of RIPA 2000), it is nevertheless highly relevant that
the campaign has some features of vexatiousness which should feed into the
overall analysis as to how the claims are dealt with and particularly as
regards the exercise of the Tribunal’s remedial discretion.

18. Thus the fact that the claims impose a
heavy burden on the Agencies and the IPT, coupled with the fact that the
motivation for these complaints appears to be to go behind the important and
well-established NCND principle (see §§31-35 of the Respondents’ Preliminary
Submissions), are relevant considerations which suggest a degree of
vexatiousness and which are highly relevant to how the broad discretion of the
Tribunal should be exercised in these cases.
As made clear in Dransfield v
Information Commissioner and Devon County Council [2015] EWCA Civ 454 at
§§67-69 per Arden LJ, both the burden imposed on a public authority and the
motive of the claimant are relevant considerations when assessing whether
vexatiousness can be inferred. The fact
that less than 3% of the Claimants have included any additional information,
over and above submission of the standard template (prepared by Privacy
International) supports the assessment that the motivation for these claims is
to impose a considerable and disproportionate burden on the Agencies.”

Our conclusions

We are satisfied that, as to the Respondents’ primary
case, the judgments in Liberty/PrivacyNo 1 and No 2 were not the finishing
point, but only the starting point for the potential investigation of any
proper individual claims. Just as the
claimants in that case, who had established sufficient locus to bring the
claim, were entitled, after the legal issues had been decided on assumed facts,
to have investigations of their own individual circumstances, so that would be
the case in respect of any other such claimant who can satisfy the locus
requirement. The Liberty/Privacy claims were not sample or specimen
cases. We are equally satisfied that any
decision that we would not look at
the individual cases of other claimants who could establish the relevant locus
would be contrary to Weber and Zakharov, and to the Tribunal’s own
duty within RIPA, and indeed would undermine the position as accepted by the
ECtHR in Kennedy v UK, approving the
UK regime so far as concerns the role of this Tribunal to such an extent that,
as set out in paragraph 17 above, it was prepared to recognise in Zakharov that there could in
consequence be a different test for the approach to locus in claims before this
Tribunal.

These present applications may have been instigated by
a Privacy International campaign, but each application must still be considered
by reference to its own merits, if any.
Whatever the purpose of the campaign, we are satisfied that these
applications will not lead to a breach or evasion of the NCND principle. It is only if a particular application were
investigated and a relevant breach or unlawful act were established that there
would be any question of revelation of the underlying position. We agree with paragraphs 32-34 of Mr Jaffey’s
Reply set out in paragraph 34 above.

However, as discussed, there can be no shortcut if the
applications are to proceed, and considerable care is required before the
Tribunal takes upon itself, and imposes upon the Agencies, 663, or possibly
more (subject to any limitation argument), individual investigations. That is why we have listed these cases for
hearing.

We are satisfied that there was not, as Mr Jaffey
sought to allege, some kind of systemic or wide-ranging failure by the
Respondents by virtue of what was disclosed in Liberty/Privacy No 3. There
were, as described in paragraphs 5 and 6 above, two relatively minor breaches
of procedure, as described. That is not
to say that other complaints may not on investigation be justified. It is not however our role, as it is that of
the Commissioners, to supervise and oversee the performance of the
Agencies. Our role is to investigate
individual complaints that are made to us, after establishing the legal
framework which is to apply to them. We
are a tribunal dedicated towards an efficient disposal of claims by those who
have grounds of some kind for belief that their communications are being
intercepted, as opposed to being a recipient of possibly hundreds or thousands
of applications from people who have no such basis other than the mere
existence of the legislation. We
reported the position as recorded in Liberty/Privacy
No 3 both to the Commissioners and also, pursuant to our obligation under
s.68(5) of RIPA, to the Prime Minister; and would so report any further breaches
we might find pursuant to any similar complaint.

The standard forms as used by all the Claimants do
record a belief that the Respondents “have
and/or continued to intercept, solicit, access, obtain, process, use, store
and/or retain” their information and/or communications, though they result
from a website in which Privacy International, having asked the obvious
question as to whether the reader has “ever
made a phone call, sent an email or … used the internet” then invites them
to “try and find out if GCHQ illegally
spied on you”. It is difficult if
not impossible to distinguish between a ‘fishing expedition’ and such an
asserted general belief as in the standard claim form. In the course of his always eloquent submissions,
Mr Jaffey suggested that the Six are “exactly
the kind of people who might well properly ask the IPT to investigate whether
or not they have been the victims of unlawful conduct.” That may be so, but it is impossible even
to suggest the same as to the remainder of the 663.

We are satisfied that the appropriate test for us to
operate, which would accord with Zakharov
and our obligations under RIPA, is whether in respect of the asserted belief
that any conduct falling within subsection s.68(5) of RIPA has been carried out
by or on behalf of any of the Intelligence Services, there is any basis for
such belief; such that the “individual
may claim to be a victim of a violation occasioned by the mere existence of
secret measures or legislation permitting secret measures only if he is able to
show that due to his personal situation, he is potentially at risk of being
subjected to such measures.” (Zakharov at 171). This continues to be the low hurdle for a
claimant that this Tribunal has traditionally operated.

We are persuaded that, in relation to the Six, whose
circumstances we have set out in paragraph 11 above, they satisfy such a
requirement for consideration by the Tribunal, and investigation by the
Agencies, in respect of the s.8(4) RIPA regime and, with a considerable element
of doubt, also in respect of Prism/Upstream, save in respect of the US citizen
Mr Wieder. Subject to what we say below
in relation to the question of jurisdiction, we would direct enquiries to be
made in respect of the Six. But we are
entirely satisfied that there is insufficient information in the standard form
which is being used by all the other 657 Claimants (including the rest of the
Ten) to justify such a course, though we shall carefully address in due course
whether the seventeen referred to in paragraph 12 above have added anything
material to the standard form, such as to set out any basis for the asserted
belief or to show any potential risk, if they otherwise satisfy the
requirements for jurisdiction, to which we turn below.

Subject therefore to the second issue, we conclude that
the Six alone have established locus.
With regard to the balance of the Ten and (subject to possible reconsideration
in relation to the seventeen referred to) the balance of the 663, we do not
propose to direct any enquiries or investigation by the Agencies. We shall leave open the question as to
whether, as the Respondents submit, there is in these circumstances a power,
explicit pursuant to s.68(1) or implicit, to dismiss such claims, or to make no
determination without having investigated them, but we are satisfied that we can
in any event take the course, which Mr Jaffey agrees is available if we decide,
as we do, that the claims are not sustainable, to reject them as frivolous
within s.67(4).

The jurisdiction issue

As appears from paragraph 11 above, of the five
individual Claimants among the Six, two have not, at any material time, been
resident in the United Kingdom; Mr Wieder is a citizen of the United States of
America and lives there and G is a citizen of one Council of Europe state,
resident in another. Both have submitted
a human rights claim in Form T1 as well as a complaint in Form T2. They both use the standard form Statement of
Grounds. As set out above, they assert a
belief that the Respondents have performed a number of actions, including
interception, use and storage of “my information and/or communications” and may
have received “my information” from the NSA prior to 5 December 2014. In consequence, each claims that his rights
under Articles 8 and 10 ECHR have been infringed. The Respondents contend that if, which is
neither confirmed nor denied, any such interception or sharing has occurred, it
cannot, as a matter of principle, give rise to a claim under s.6 Human Rights
Act 1998, because the United Kingdom has no obligation under the ECHR to secure
the rights under Articles 8 and 10 to them.

The foundation for the argument is Article 1 ECHR:

“The high contracting
parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section 1 of this convention.”

Mr Eadie submits that neither
Claimant is or was at any material time within the jurisdiction of the United Kingdom,
and such is not in issue. In
consequence, the UK
owed no obligation to them to secure Article 8 or 10 rights in relation to
their “information” or “communications”.

Mr Jaffey submits that the point has never been taken
before in the Tribunal, in circumstances in which it could have been; and while
that does not prevent it from being taken, it is a reliable indicator that the
point is not good. His more principled
argument is that, by analogy with other circumstances in which the ECtHR has held
that the Convention does apply to persons not present in the territory of a
contracting state, the obligation exists.
We understand him to accept that the issue can be determined under
Article 8 and that Article 10 adds nothing to his argument. Article 8(1) provides,

“Everyone has the right
to respect for his private and family life, his home and his correspondence.”

Mr Jaffey submits that the
acts claimed would amount to an infringement of the right to respect for
private life and/or correspondence.

When it has addressed its mind to the issue, the ECtHR
has always held that, subject to identified exceptions, the reach of the
Convention is territorial. The modern
starting point is Bankovic v UK and
Others [2007] 44 EHRR 75. The Court
acknowledged the principle of public international law, that the jurisdictional
competence of a state is primarily territorial: paragraph 57. It was of the view that “Article 1 of the Convention must be considered to reflect this
ordinary and essentially territorial notion of jurisdiction, other bases of
jurisdiction being exceptional and requiring special justification in the
particular circumstances of each case”: paragraph 59. It took into account the travaux
préparatoires, so as to include within the scope of the Convention “others who may not reside, in a legal
sense, but who are, nevertheless, on the territory of the contracting states”:
paragraph 61. It expressly approved in
paragraph 64 an earlier statement of principle in Soering v UK[1989] 11 EHRR 439,

“…The engagement
undertaken by a contracting state is confined to “securing” (“reconnaître” in the French text) the listed rights
and freedoms to persons within its own “jurisdiction”.

The most recent clear and authoritative summary of the
law by the ECtHR appears in ChagosIsland v UK [2013] 56 EHRR SE15 at
paragraph 70:-

ii. Only exceptional
circumstances give rise to exercise of jurisdiction by a State outside its own
territorial boundaries;

iii. Whether there is
an exercise of jurisdiction is a question of fact;

iv. There are two
principal exceptions to territoriality: circumstances of “State agent authority
and control” and “effective control over an area”;

v. The “State agent
authority and control” exception applies to the acts of diplomatic and consular
agents present on foreign territory; to circumstances where a Contracting
State, through custom, treaty or agreement, exercises executive public powers
or carries out judicial or executive functions on the territory of another
State; and circumstances where the State through its agents exercises control
and authority over an individual outside its territory, such as using force to
take a person into custody or exerting full physical control over a person
through apprehension or detention.

vi. The “effective
control over an area” exception applies where through military action, lawful
or unlawful, the State exerts effective control of an area outside its national
territory.

vii. In the exceptional circumstances of the cases before the Grand
Chamber, where the United Kingdom had assumed authority and responsibility for
the maintenance of security in South East Iraq, the United Kingdom, through its
soldiers engaged in security operations in Basrah during the period in
question, had exercised authority and control over individuals killed in the
course of such security operations, so as to establish a jurisdictional link
between the deceased and the United Kingdom for the purposes of Article 1 of
the Convention.”

Subsequent developments have primarily concerned the
scope of the exceptional cases in which acts of contracting states performed or
producing effects outside their territories can constitute an exercise of
jurisdiction by them within the meaning of Article 1. The exceptions so far recognised are acts of
diplomatic and consular agents present on foreign territory, the exercise of
control and authority over an individual outside its territory, with or without
the consent of the state in which control and authority are exercised, the
exercise of effective control of an area outside the territory of the
contracting state and the occupation by one contracting state of the territory
of another: Al-Skeini v UK[2011] 53 EHRR 18 at paragraphs 133 –
142.

Mr Jaffey does not, save in one respect, submit that
the two Claimants fall within any of the recognised exceptions. In the case of G, resident in another
signatory state, he submits that he is within the “espace juridique” of the Convention and so falls within the fourth
exception which, in Al-Skeini was
expounded under the heading “General
principles relevant to jurisdiction under Article 1 of the Convention: the
Convention legal space (espace juridique).”
This contention, if correct, would radically alter the nature of the
obligation undertaken by a contracting state: it would impose an obligation in
respect of all persons within the jurisdiction of any contracting state. Such a construction of Article 1 would go
well beyond any conceivable construction permitted by public international law
and is inconsistent with the careful incremental approach of the ECtHR, when
dealing with issues which may not have been fully foreseen by those who
negotiated the Convention. The ECtHR has
made it clear that, at least for the time being, the notion of the espace
juridique requires that when one contracting state has occupied the territory
of another, it must be accountable for breaches of human rights within the
occupied territory: Al-Skeini
paragraph 142. We do not see any room
for a distinction between Claimants abroad on the basis that some are resident
in another Convention state.

Mr Jaffey’s core submission is that, on a true
analysis, the impugned acts have both occurred in the territory of the United Kingdom. Therefore, it does not matter that the person
whose Article 8 rights may have been infringed was at all material times
abroad. He relies on Bosphorus v Ireland
[2006] 42 EHRR 1 and Markovic v Italy
[2007] 44 EHRR 52. In Bosphorus,an aircraft owned by an entity in the former Republic
of Yugoslavia and leased by a Turkish
company was seized in Dublin
pursuant to UN and EU sanctions measures.
The Turkish lessors had no connection with Ireland
other than the maintenance contract with an Irish company pursuant to which the
aircraft had been flown to Dublin. Neither the Irish Government nor other
intervening parties, including the European Commission, submitted that Article
1 ECHR excluded the application because the Turkish lessors were not within the
jurisdiction of Ireland
when the aircraft was seized. (The
submissions under Article 1 which were made were that the application was
outside the Convention for other reasons).
Nevertheless, the Court addressed the issue in paragraph 137 of its Judgment:

“In the present case it
is not disputed that the act about which the applicant complained, the
detention of the aircraft leased by it for a period of time, was implemented by
the authorities of the respondent state on its territory following a decision
to impound of the Irish Minister for Transport.
In such circumstances the applicant company, as the addressee of the
impugned act, fell within the “jurisdiction” of the Irish state…”

In Markovic, the claimants were relatives of people killed on 23 April
1999 when the RTS building in Belgrade
was struck by a missile launched from a NATO aircraft. They claimed damages in the Rome District
Court. On 8 February 2002 the Court of
Cassation ruled that the Italian Courts had no jurisdiction to hear the
claim. The applicants contended that
their rights under Article 6 ECHR had been infringed. In answer to a preliminary question raised by
the ECtHR of the parties, the Italian Government conceded that the applicants
had brought themselves within the ambit of the State’s jurisdiction by lodging
a claim: paragraph 38 of the Judgment.
In the light of that concession, it is unsurprising that the Court held
that if civil proceedings are brought in domestic courts, the state is required
by Article 1 ECHR to secure in those proceedings respect for the right
protected by Article 6, so that “there
indisputably exists…a “jurisdictional link”” for the purposes of Article 1:
paragraphs 54 and 55 of the Judgment.

Although the Court did not spell out its reasoning in
either case for its conclusion that the contracting state owed the relevant
convention obligation to the applicants, the outcome was not unprincipled. InBosphorus the aircraft’s lessors had
submitted their property to the territorial jurisdiction of the IrishState
when they caused it to be flown to Dublin. Accordingly, although they were not
physically present in Ireland
at the time of the impugned act, their property was within its territorial
jurisdiction. In Markovic, the applicants had submitted to the jurisdiction of the
Italian Courts when they brought their civil claims there. Like the aircraft lessors, they had
voluntarily submitted to the jurisdiction of a contracting state and were
entitled to the benefit of the only relevant article of the Convention, Article
6, in the determination of their civil claim.

Neither case assists the two Claimants. In so far as their claim is founded on belief
that their right to respect for their private life has been infringed, neither
of them allege that, at any material time, they enjoyed a private life in the United Kingdom. Accordingly, under Article 1, the United Kingdom
was under no obligation to respect it.
The analogy with Bankovicis close. Further, information about a person is not
property: OBG Limited v Allan [2008]
1 AC 1 at paragraph 275 per Lord Walker.
Even in the autonomous Convention meaning, it has never been held to
amount to a “possession”, for the
purposes of Article 1 of Protocol 1.
Accordingly, the retention by GCHQ of information shared with it by the
NSA, even in circumstances which do not comply with UK law, could not amount to a
breach of the two Claimants’ right to respect for their private life.

Mr Jaffey focussed on the Article 8 right to respect
for “correspondence”. The interception of telephone calls and the
interception and seizure of electronic mail amount to an interference with “correspondence”: Lüdi v Switzerland[1992] 15 EHRR 173 paragraph 39 and Wiser and Bicos Betiligungen v Austria
[2008] 46 EHRR 54 at paragraph 45.
Whether or not interception of electronic mail or telephone calls which
happen to pass by cable or airwave through the territory of a contracting state
sent or made to and received by persons outside the United Kingdom are within
the scope of Article 1 is a moot point.
It was raised as an objection by the German Government in Weber.
The Court did not consider it necessary to rule on the issue: paragraph
72 of its Judgment. In Liberty v UK
two of the claimants were Irish NGO’s and the point was not taken or
addressed.

Our view is that a contracting state owes no obligation
under Article 8 to persons both of whom are situated outside its territory in
respect of electronic communications between them which pass through that
state. Further, and in any event, as a
UK tribunal we are obliged by domestic law not to do more than to keep pace
with the Strasbourg jurisprudence: R (Ullah)
v Special Adjudicator [2004] 2 AC 323 at paragraph 20 per Lord Bingham and Smith v Ministry of Defence [2014] AC
52 at paragraph 44 per Lord Hope. We are
also not persuaded that a privacy right is, as Mr Jaffey contended, a right of
action present in the jurisdiction, and that too would similarly be extending
the bounds of the UK Courts’ jurisdiction under Article 8.

For those reasons, we are satisfied that the two Claimants’
human rights claims cannot succeed, because they are claims about matters which
are outside the scope of the ECHR, alternatively, because it has not been
established by the jurisprudence of the ECtHR that they clearly are within it.

Consequently, we dismiss, on the ground that the
Tribunal has no jurisdiction, the human
rights claims made in their T1 forms by G and by Mr Weider, but Mr Eadie has
accepted that he cannot resist the claims made by them in respect of their T2
form, insofar as the Claimants, albeit abroad, make claims otherwise than by
reference to the Human Rights Act in respect of conduct that might turn out to
have been committed in the UK, with regard to the result and treatment of any
intercepted information.

So far as concerns the human rights claims in their T1
forms in respect of the other three US residents who (as appears in paragraph
10 above), form part of the Six, the same would apply, as it would to all of
the 663, save for the 294 resident in the United Kingdom.

The Tribunal’s
conclusions

Accordingly the Tribunal will direct enquiries in
respect of the Six (with the exception of the T1 forms of G and Mr Weider, and
of any claims in respect of Prism/Upstream by Mr Weider). In respect of all the other Claimants the
Tribunal will send a copy of this judgment to their identified addresses,
notifying all of those Claimants save those resident in the United Kingdom
(“non-UK Claimants”) that their T1 Form claims are dismissed for lack of
jurisdiction. In respect of the UK
Claimants, and the non-UK Claimants in respect of their T2 Form claims, they
will be notified that, in the absence of receipt by the Tribunal within 28 days
of the date of dispatch of the judgment of any further submissions, their
claims will stand dismissed as unsustainable, that is frivolous within s.68(4)
of RIPA.

In accordance with Section 111(5) of the Magistrates’ Court Act 1980 I decline to state a case on the basis of the current application as it is frivolous, and in particular it is misconceived (R v North West Suffolk (Mildenhall) Magistrates Court [1998] Env LR 9 – defining ‘frivolous’).

The CPS application repeatedly significantly misrepresents the contents of the judgement delivered at the end of the case and therefore seeks to challenge the decisions reached on wholly erroneous bases. The CPS application also muddles factual decisions with decisions of law and it is not open to the CPS to seek to appeal findings of fact. A very lengthy and detailed judgement was produced at the end of this matter, although this is not a requirement for trials in the Magistrates Court. The judgement was designed to be of assistance to all the parties in the case. In these circumstances the very least the CPS should do is to read the judgement fully and, if appropriate, frame their application based on what was actually decided rather than what they seem to believe was decided. The CPS also needs to make a significantly better effort to identify any claimed errors of law as distinct from findings of fact.

In particular:

Ground 1 objects to a finding made about the defendants’ motives. This is clearly a finding of fact and not open to challenge.

Ground 2 – this wholly misrepresents the findings in relation to ‘force’. The judgement did NOT find that the defendants’ actions amounted to force but that there were authorities that legitimised actions short of force that could be used in the prevention of crime (page 47 of the judgement onwards). Authorities in support of this analysis are clearly set out. It is of great concern to me that the CPS are seeking to misrepresent the conclusions in this way.

Ground 3 misrepresents the evidence heard by the court – the evidence referred to was factual evidence relating to criminal offences said to have occurred at the DSEI arms far and was not evidence as to the ‘legality of the defendants’ acts’ which would be inadmissible opinion evidence on a matter entirely for the court to decide.

Ground 4 again appears, as it is written, to challenge a finding of fact. The Ground also asserts incorrectly that the judgement is silent on issues that are clearly addressed - namely the crimes the defendants believed were being committed and the perpetrators.